An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-923

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

TRIMARK FOODCRAFT, INC.,

Plaintiff,

v. Cabarrus County

No. 12 CVD 2558

TODD LEGER and LEGER CORP.,

Defendants.

Appeal by defendants from judgment entered 19 April 2013 by 

Judge Martin B. McGee in Cabarrus County District Court. Heard 

in the Court of Appeals 22 January 2014.

Olsen Law Offices, P.L.L.C., by John Olsen, for plaintiffappellee.

Vann Law Firm, P.A., by Christopher M. Vann, for 

defendants-appellants.

GEER, Judge.

Defendants Todd Leger and Leger Corp. appeal from an order

granting plaintiff Trimark Foodcraft Inc.'s motion for summary 

judgment. On appeal, defendants acknowledge that they failed to 

respond to plaintiff's request for admissions, but contend that 

those admissions are insufficient to establish defendants' 

liability for unfair and deceptive trade practices and 
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attorneys' fees. We agree and, therefore, reverse the summary 

judgment ruling to the extent that it enters judgment in 

plaintiff's favor with respect to those claims. However, we 

hold that the trial court did not err in holding that Leger 

Corp. is the alter ego of Mr. Leger and that plaintiff is 

accordingly entitled to pierce the corporate veil and hold Mr. 

Leger jointly and severally liable with Leger Corp. 

Facts

Plaintiff is a company that supplies food service equipment 

and design services to restaurants, country clubs, and other 

businesses. On 2 August 2012, plaintiff brought suit against 

defendants, alleging that it had contracted with defendants for 

the sale of goods and services to be used at Raintree Country 

Club in Charlotte, North Carolina. According to plaintiff's 

verified complaint, plaintiff performed all of its obligations 

to defendants concerning the work at Raintree Country Club. 

The verified complaint further alleged that defendants 

issued a $33,143.47 check to plaintiff that was subsequently 

returned for insufficient funds. Additionally, plaintiff 

alleged that defendants, in order to obtain payment from 

Raintree Country Club (including for the goods and services 

provided by plaintiff), submitted a false affidavit to the 

Country Club making "false statements regarding payment to 
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[plaintiff] knowing they were false" and that defendants, based 

on that affidavit "received payment on the Raintree job, in 

violation of N.C.G.S. 44A-24[.]"

Plaintiff asserted claims against both defendants for 

breach of contract, quantum meruit, worthless check, fraud, and 

unfair or deceptive trade practices. The complaint alleged, as 

a basis for its claims against Todd Leger, that the Leger Corp. 

is the "alter ego" of Mr. Leger, "having failed to file 

corporate reports with the NC Secretary of State and follow 

corporate formalities, entitling [plaintiff] to 'pierce the 

corporate veil' and treat them as one entity."

On 6 December 2012, defendant filed an unverified answer 

denying the material allegations of the complaint and asserting

various affirmative defenses, including accord and satisfaction

and setoff. Defendants alleged that plaintiff and Leger Corp. 

had entered into an agreement pursuant to which plaintiff agreed 

to accept $33,000.00 in satisfaction of the claimed debt, and 

Leger Corp. had made two payments of $11,000.00, leaving a 

balance due of $11,000.00. Defendants further alleged in the 

unverified answer that the claims against Mr. Leger should be 

dismissed because "Leger Corp. is in good standing with the 

North Carolina Secretary of State."
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On 7 December 2012, plaintiff served defendants by fax and 

first class mail with "Plaintiff's Interrogatories, Request for 

Admissions and Request to Produce." Defendants failed to answer 

or otherwise respond to the discovery requests within 30 days. 

Plaintiff filed a motion for summary judgment on 11 

February 2013. On 25 February 2013, the day before the summary 

judgment hearing, Mr. Leger served an affidavit opposing summary 

judgment. He submitted the affidavit to the trial court at the 

hearing. On 7 March 2013, more than a week after the hearing 

and two months past the date responses were due under the Rules 

of Civil Procedure, defendants served plaintiff with their

responses to the plaintiff's discovery requests, including the 

request for admissions. The record contains no indication that 

defendants' responses were filed with the trial court.

The trial court entered a written order granting summary 

judgment to plaintiff with respect to both defendants on 19

April 2013. The court found that defendants had not responded 

to plaintiff's written discovery requests, including the request 

for admissions. The court further noted: 

5. The Request for Admissions 

included, in part:

a. "1. The allegations of fact 

and conclusions of law in the 

Plaintiff's Complaint and any 

amendments thereto are 

correct and result in the 
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liability and damages set 

forth therein. 

b. "13. There are no facts upon 

which Defendant relies as a 

basis for any defense in this 

action.

and

c. "15. Attorney's fees of 15% 

of the principal amount of 

the claim plus interest at 

the time this lawsuit was 

filed are fair, reasonable 

and should be added to 

Plaintiff's claim."

(Emphasis omitted.)

The trial court found that defendants "offered no good 

reason for their failure to respond to Plaintiff's Request for 

Admissions nor for their untimely affidavit." Additionally, the 

court found that the parties had stipulated that payments by 

defendants had reduced the original principal amount sued upon 

to $11,000.00. 

Based on these findings, the trial court made the following 

conclusions of law: 

1. Defendants' admissions set forth 

above are judicially established as a matter 

of law, pursuant to Rule 36 of the North 

Carolina Rules of Civil Procedure. 

2. Defendants offered no good reason 

to relieve them of their failure to comply 

with the North Carolina Rules of Civil 

Procedure.
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3. Defendants provided a false 

affidavit to receive payment, in violation 

of N.C.G.S. 44A-24.

4. This case raised no material 

issues of fact and Plaintiff is entitled to 

Judgment as a matter of law.

The trial court then ordered that plaintiff recover from 

defendants, jointly and severally: (1) the principal sum of 

$11,000.00, trebled to $33,000.00 pursuant to N.C. Gen. Stat. §

75-16 (2013), (2) pre-judgment interest, (3) reasonable 

attorneys' fees of $2,102.06, representing 15% of the principal 

and interest, (4) post-judgment interest, and (5) costs. 

Defendant timely appealed to this Court.

Discussion

"Our standard of review of an appeal from summary judgment 

is de novo; such judgment is appropriate only when the record 

shows that 'there is no genuine issue as to any material fact 

and that any party is entitled to a judgment as a matter of 

law.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 

S.E.2d 382, 385 (2007)). "[S]ummary judgment, by definition, is 

always based on two underlying questions of law: (1) whether 

there is a genuine issue of material fact and (2) whether [any]

party is entitled to judgment, N.C.R.Civ.P. 56(c)[.]" Ellis v. 

Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987).
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Defendants do not dispute that because of their failure to 

respond to plaintiff's request for admissions, those requests 

were deemed admitted pursuant to Rule 36 of the Rules of Civil 

Procedure. See Shwe v. Jaber, 147 N.C. App. 148, 151, 555 

S.E.2d 300, 303 (2001) ("[M]atters as to which admission is 

requested are deemed admitted unless the party to whom the 

request is directed serves a written response within the time 

permitted by the rule."); N.C.R. Civ. P. 36(b) ("Any matter 

admitted under this rule is conclusively established unless the 

court on motion permits withdrawal or amendment of the 

admission."). Defendants contend, however, that plaintiff's 

verified complaint and the admissions are not sufficient to 

support liability for unfair and deceptive practices under N.C. 

Gen. Stat. § 75-1.1 (2013).

Plaintiff's request for admissions included, in relevant 

part, the following: 

1. The allegations of fact and 

conclusions of law in Plaintiff's Complaint 

and any amendments thereto are correct and 

result in the liability and damages set 

forth therein.1

 

1Defendant did not object to this request for admission and 

we, therefore, do not address whether such a request is proper. 

We do note that to the extent it calls for an admission 

regarding a legal issue, such an admission is not binding on the 

court. See Bullard v. Wake Cnty., ___ N.C. App. ___, ___, 729 

S.E.2d 686, 694 (holding that Rule 36 admissions are not binding 

with respect to questions of law as opposed to application of 

law to facts), disc. review denied, 366 N.C. 409, 735 S.E.2d 184 
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Therefore, by operation of Rule 36, defendant admitted the facts 

alleged in plaintiff's verified complaint. 

"To prevail on a claim of unfair and deceptive trade 

practice a plaintiff must show (1) an unfair or deceptive act or 

practice, or an unfair method of competition, (2) in or 

affecting commerce, (3) which proximately caused actual injury 

to the plaintiff or to his business." Spartan Leasing Inc. of 

N.C. v. Pollard, 101 N.C. App. 450, 460-61, 400 S.E.2d 476, 482 

(1991). It is, however, well established that "[a] mere breach 

of contract, even if intentional, is not an unfair or deceptive 

act under Chapter 75." Bob Timberlake Collection, Inc. v. 

Edwards, 176 N.C. App. 33, 42, 626 S.E.2d 315, 323 (2006). "To 

recover for unfair and deceptive trade practices, a party must 

show substantial aggravating circumstances attending the breach 

of contract." Id. 

Here, plaintiff contends that because of defendant's 

violation of N.C. Gen. Stat. § 44A-24 (2013), its claim does not 

involve a mere breach of contract. A violation of a regulatory 

statute can constitute a per se violation of N.C. Gen. Stat. § 

75-1.1 if "the regulatory statute specifically defines and 

proscribes conduct which is unfair or deceptive within the 

meaning of N.C. Gen. Stat. § 75-1.1." Noble v. Hooters of 

 

(2012).
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Greenville (NC), LLC, 199 N.C. App. 163, 170, 681 S.E.2d 448, 

454 (2009). Alternatively, "the violation of a regulatory 

scheme may be a violation of the [Unfair and Deceptive Practices 

Act] where the regulatory violation satisfies the three elements 

of [an Unfair and Deceptive Practices Act] claim." Id. at 171, 

681 S.E.2d at 455. 

N.C. Gen. Stat. § 44A-24 provides that "conduct 

constituting the offense herein stated and causing actual harm 

to any person by any licensed contractor . . . shall constitute 

deceit . . . ." Thus, a violation of N.C. Gen. Stat. § 44A-24 

"specifically defines and proscribes conduct which is unfair or 

deceptive within the meaning of N.C. Gen. Stat. § 75-1.1." 

Noble, 199 N.C. App. at 170, 681 S.E.2d at 454. 

N.C. Gen. Stat. § 44A-24 provides that it is a Class 1 

misdemeanor

[i]f any contractor or other person 

receiving payment from an obligor for an 

improvement to real property . . . shall 

knowingly furnish to such obligor . . . a 

false written statement of the sums due or 

claimed to be due for labor or material 

furnished at the site of improvements to 

such real property . . . . 

The elements of the offense herein 

stated are the furnishing of the false 

written statement with knowledge that it is 

false and the subsequent or simultaneous 

receipt of payment from an obligor or 

purchaser by the person signing the document

. . . .
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Under the plain language of the statute, in order to 

successfully show that a defendant has violated this statute, 

plaintiff is required to show all three elements of the offense: 

(1) the furnishing of the false written statement, (2) with the 

knowledge that it is false, and (3) the subsequent or 

simultaneous receipt of payment from the obligor. Id. As to 

the first element, the false written statement must be (1) to 

the obligor and (2) "of the sums due or claimed to be due for 

labor or material furnished at the site of improvements to [the] 

real property . . . ." Id. 

Here, the undisputed facts as taken from plaintiff's 

verified complaint -- with the facts deemed admitted by 

defendants -- are insufficient to show that defendant violated 

N.C. Gen. Stat. § 44A-24. The complaint alleges that defendants 

[P]rovided a false affidavit to Raintree, in 

order to induce payment for the work it had 

performed, including the goods and services 

provided by [plaintiff]. [Defendant] made 

false statements regarding payment to 

[plaintiff] knowing they were false and 

received payment on the Raintree job, in 

violation of N.C.G.S. 44A-24 . . . . 

This allegation is not sufficient to meet the requirements 

regarding the false written statement. While plaintiff has 

alleged that the affidavit to Raintree was knowingly false, the 

false statement was not regarding sums due or claimed to be due 
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for labor or materials furnished at Raintree Country Club. 

Rather, the complaint states that the false statement was 

regarding payment to plaintiff. 

Moreover, even assuming that defendant violated this 

statute, plaintiff has failed to show that the violation -- the 

unfair and deceptive practice -- proximately caused plaintiff's 

injury. While plaintiff was injured because defendant had 

insufficient funds and paid plaintiff with a worthless check,

plaintiff has failed to allege facts showing that plaintiff was 

harmed by defendants' false statement to Raintree inducing 

payment for the project. Causation is a necessary element of a 

claim for unfair and deceptive practices, and plaintiff's 

failure to make a sufficient showing as to causation defeats its

claim. See Bob Timberlake, 176 N.C. App. at 42, 626 S.E.2d at

323 (denying recovery on claim for unfair and deceptive practice 

where complaint failed to demonstrate that act of deception 

proximately resulted in injury to plaintiff).

Plaintiff has relied exclusively on N.C. Gen. Stat. § 44A24 as the basis for its unfair and deceptive practices claim. 

Since that statute is inapplicable and the remaining undisputed 

facts show nothing more than a mere breach of contract by 

defendant, we hold that plaintiff has failed to show that it is 
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entitled to judgment as a matter of law on its claim for unfair 

or deceptive practices. 

Defendants next contend that the trial court erred in 

awarding plaintiff attorneys' fees. "[T]he general rule in 

North Carolina is that a party may not recover its attorney's 

fees unless authorized by statute." Martin Architectural 

Prods., Inc. v. Meridian Constr. Co., 155 N.C. App. 176, 181, 

574 S.E.2d 189, 192 (2002). Here, the trial court did not 

indicate under which statute it was authorized to award 

attorneys' fees. 

Plaintiff's complaint sought attorneys' fees in connection 

with its breach of contract claim, citing N.C. Gen. Stat. § 6-

21.2 (2013); its "Worthless Check" claim, citing N.C. Gen. Stat. 

§ 6-21.3 (2013); and its claim for unfair or deceptive trade 

practices. Because we have already concluded that the trial 

court erred in entering summary judgment in favor of plaintiff 

on its unfair and deceptive trade practices claim, the statute 

authorizing fees for such claims, N.C. Gen. Stat. § 75-16.1 

(2013), cannot justify the trial court's fee award.

With respect to N.C. Gen. Stat. § 6-21.2, that statute 

relates to "[o]bligations to pay attorneys' fees upon any note, 

conditional sale contract or other evidence of indebtedness." 

As this Court has explained, N.C. Gen. Stat. § 6-21.2 "allows an 
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award of attorneys' fees in actions to enforce obligations owed 

under an evidence of indebtedness that itself provides for the 

payment of attorneys' fees." Trull v. Cent. Carolina Bank & 

Trust, 124 N.C. App. 486, 490, 478 S.E.2d 39, 42 (1996)

(emphasis added) (internal quotation marks omitted), aff'd in 

part, review dismissed in part, 347 N.C. 262, 490 S.E.2d 238 

(1997). It is possible that the parties' contract may fall 

within the definition of "other evidence of indebtedness." See 

U.S. ex rel. SCCB, Inc. v. P. Browne & Assocs., 751 F. Supp. 2d 

813, 817 (M.D.N.C. 2010) (holding construction subcontract 

containing provision for attorneys' fees is "'evidence of 

indebtedness'" under North Carolina law and thus authorized 

attorneys' fees under N.C. Gen. Stat. § 6-21.2). 

Nevertheless, the record does not include the parties' 

contract, and plaintiff's complaint does not specifically allege 

that the contract included a provision for payment of attorneys' 

fees. Consequently, even though defendants do not challenge the 

entry of summary judgment as to plaintiff's breach of contract 

claim, N.C. Gen. Stat. § 6-21.2 cannot be a basis for awarding 

fees on summary judgment in the absence of evidence that the 

parties' contract provided for attorneys' fees. 

With respect to the worthless check claim, N.C. Gen. Stat. 

§ 6-21.3 allows for attorneys' fees of up to $500.00 when a 
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party knowingly issues a worthless check. However, the record, 

in this case, contains no evidence that plaintiff sent the 

notification letters required under N.C. Gen. Stat. § 6-21.3(a1) 

and (a2), which are a prerequisite to recovery under that

statute. N.C. Gen. Stat. § 6-21.3, therefore, cannot support 

the attorneys' fee award.

Plaintiff argues, nonetheless, that attorneys' fees were 

proper because defendants failed to deny or otherwise respond to 

the following request for admission: 

15. Attorney's fees of at least 15% of 

the principal amount of this claim plus 

interest at the time this lawsuit was filed 

are fair, reasonable and should be added to 

Plaintiff's claim.

We disagree that defendants' admission of this assertion 

supports an award of attorneys' fees. To the extent that this 

request involves a statement of fact or the application of law 

to fact, it establishes only what constitutes a reasonable 

amount of attorneys' fees. The admission precluded defendant 

only from challenging an award of "15% of the principal amount 

of [the] claim plus interest" as unreasonable in the event the 

trial court properly awarded attorneys' fees. 

However, because a trial court may not award attorneys' 

fees unless authorized by statute, defendants' failure to 

respond to the request for admissions could not result in an 
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admission that plaintiff was entitled, as a matter of law, to an 

award of attorneys' fees. See Eury v. N.C. Emp't Sec. Comm'n, 

115 N.C. App. 590, 599, 446 S.E.2d 383, 389 (1994) (observing 

that "'the effect or operation of a stipulation will not be 

extended by the courts beyond the limits set by the parties or 

by the law.'" (quoting Outer Banks Contractors, Inc. v. Forbes, 

302 N.C. 599, 604-05, 276 S.E.2d 375, 379-80 (1981))). 

Consequently, despite defendants' admissions, the record 

does not establish that plaintiff is entitled to judgment as a 

matter of law on its request for attorneys' fees. We, 

therefore, reverse the trial court's order to the extent that it 

awards plaintiff attorneys' fees.

Finally, Mr. Leger argues that the trial court erred in 

granting summary judgment with respect to plaintiff's claim that 

Leger Corp. was Mr. Leger's alter ego and that plaintiff was, 

therefore, entitled to pierce the corporate veil. Because of 

Mr. Leger's failure to respond to the request for admissions, it 

was conclusively established, as alleged in the complaint, that 

"Leger Corp. is the 'alter ego' of Todd Leger, having failed to 

file corporate reports with the NC Secretary of State and follow 

corporate formalities . . . ." 

On appeal, defendants argue only that Mr. Leger's affidavit 

rebutting this admission created a disputed issue of fact that 
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precluded summary judgment. The trial court, however, refused 

to consider Mr. Leger's affidavit, finding that it was untimely. 

Rule 56(c) of the Rules of Civil Procedure provides that if an

opposing affidavit is not served on the 

other parties at least two days before the 

hearing on the motion, the court may 

continue the matter for a reasonable period 

to allow the responding party to prepare a 

response, proceed with the matter without 

considering the untimely served affidavit, 

or take such other action as the ends of 

justice require. 

(Emphasis added.) 

Here, defendants did not serve plaintiff with the affidavit 

until the day before the hearing, in violation of Rule 56(c). 

The trial court found that defendants provided no good reason 

for their failure to timely file the affidavit, and defendants 

offer no explanation on appeal for the untimeliness of the 

affidavit. Defendants cannot, therefore, show that the trial 

court's exclusion of the affidavit was an abuse of discretion. 

See HSI N.C., LLC v. Diversified Fire Prot. of Wilmington, Inc., 

169 N.C. App. 767, 774, 611 S.E.2d 224, 228 (2005) (upholding 

trial court's refusal to consider affidavit that violated twoday requirement of Rule 56(c) where there was no showing of 

abuse of discretion). In the absence of any other argument 

challenging the trial court's piercing of the corporate veil, we 

affirm the trial court's entry of summary judgment as to 
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plaintiff's claim that Mr. Leger should be held jointly and 

severally liable with Leger Corp.

Conclusion

Because defendants do not challenge the trial court's entry 

of summary judgment in the amount of $11,000.00 against both 

defendants and the award of pre-judgment and post-judgment 

interest on that amount, we affirm those portions of the summary 

judgment order. We reverse the trial court's summary judgment 

order to the extent that it grants judgment to plaintiff on 

plaintiff's unfair and deceptive trade practices claim and 

awards plaintiff attorneys' fees. 

Affirmed in part; reversed and remanded in part.

Judges BRYANT and CALABRIA concur. 

Report per Rule 30(e).